Real-time cell site location information is protected under Fourth Amendment. Tracey v. State, 2014 Fla. LEXIS 3072 (October 16, 2014). This is a fascinating opinion, and it’s the most sensitive review of the issue yet:
The majority in Jones decided the case based on the physical trespass by which the GPS tracking device was installed on the defendant’s vehicle, not on the Katz reasonable-expectation-of-privacy test; thus, the concerns and questions raised by the concurring Justices were not answered in that case. Regardless, they present considerations that are relevant to our determination of whether access to real time cell site location information, which can be and was used in this case to track Tracey’s movements, requires a statement of facts establishing probable cause in advance of the tracking, rather than determining after the fact that probable cause was required based on the conduct of or the timeframe of the tracking. The concerns expressed in Jones by Justice Sotomayor in her concurrence and by Justices Alito, Ginsburg, Breyer, and Kagan, who concurred in the judgment, raise serious issues about electronic tracking that is now easily and cheaply available to the government—issues that we are loath to ignore.
James Madison, the principal author of the Bill of Rights, is reported to have observed, “Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.” See Klayman v. Obama, 957 F. Supp. 2d 1, 42 & n.67 (D. D.C. 2013) (citing James Madison, Speech in the Virginia Ratifying Convention on Control of the Military (June 16, 1788), in The History Of The Virginia Federal Convention Of 1788, With Some Account Of Eminent Virginians Of That Era Who Were Members Of The Body (Vol.1) 130 (Hugh Blair Grigsby et al. eds., 1890)). Indeed, the ease with which the government, armed with current and ever-expanding technology, can now monitor and track our cell phones, and thus ourselves, with minimal expenditure of funds and manpower, is just the type of “gradual and silent encroachment” into the very details of our lives that we as a society must be vigilant to prevent.
Simply because the cell phone user knows or should know that his cell phone gives off signals that enable the service provider to detect its location for call routing purposes, and which enable cell phone applications to operate for navigation, weather reporting, and other purposes, does not mean that the user is consenting to use of that location information by third parties for any other unrelated purposes. While a person may voluntarily convey personal information to a business or other entity for personal purposes, such disclosure cannot reasonably be considered to be disclosure for all purposes to third parties not involved in that transaction. See, e.g., In re Application of the U.S. for an Order Directing a Provider of Elec. Commc’ns Serv. to Disclose Records to the Gov’t, 620 F.3d at 317 (concluding that a cell phone customer does not “voluntarily” share his location information with the service provider in any meaningful way).
The Supreme Court in Ciraolo reiterated that “ ‘[t]he test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity,’ but instead ‘whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.’ ” 476 U.S. at 212 (quoting Oliver, 466 U.S. at 182-83). Although the Supreme Court made this pronouncement in regard to Fourth Amendment claims in the context of searches of an open field and the curtilage of a residence, the principle as stated is also applicable to our analysis here. The Supreme Court, in stating this principle, has clearly recognized protection of “personal and societal values” regarding expectations of privacy that
a society is willing to recognize even where such activities are not fully concealed.It is true that a cell phone user can prevent locational signals from being used for tracking purposes by turning off the cell phone, thus concealing the signals and the location of the user. However, we do not find that such concealment is a necessary predicate to the Fourth Amendment claim presented under the facts of this case. We have previously recognized that in addition to using cell phones to make telephone calls, “a significant portion of our population relies upon cell phones for email communications, text-messaging information, scheduling, and banking.” Smallwood, 113 So. 3d at 733. Requiring a cell phone user to turn off the cell phone just to assure privacy from governmental intrusion that can reveal a detailed and intimate picture of the user’s life places an unreasonable burden on the user to forego necessary use of his cell phone, a device now considered essential by much of the populace.
. . .
We cannot overlook the inexorable and significant fact that, because cell phones are indispensable to so many people and are normally carried on one’s person, cell phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter that the government cannot always anticipate and one which, when it occurs, is clearly a Fourth Amendment violation. The Supreme Court noted in Riley that “modern cell phones … are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of the human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.” Riley, 134 S. Ct. at 2484. The Court related data that shows “nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.” Id. at 2490. “Because cellular telephone users tend to keep their phone on their person or very close by, placing a particular cellular telephone within a home is essentially the corollary of locating the user within the home.” In re Application, etc., 849 F. Supp. 2d at 541. This real risk of “inadvertent” violation of Fourth Amendment rights is not a risk worth imposing on the citizenry when it is not an insurmountable task for the government to obtain a warrant based on probable cause when such tracking is truly justified.
Finally, and perhaps most importantly, we conclude that cell phones are “effects” as that term is used in the Fourth Amendment. …
